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Y v Z [2014] EWHC 650 (Fam)

In these Schedule 1 proceedings, mother wanted to be able to disclose to the Police and/or to the Crown Prosecution Service and the Financial Conduct Authority [FCA] the fact that the father lied in statements and on oath in these proceedings. The father worked in the financial services sector and his lies consisted of his initially not disclosing within the proceedings the fact that he had sold an enterprise owned by him and had received a sum of £111,000. The judge had to weigh up the rights and interests of the parties between themselves against the public interest and ruled that the injunction, which prohibited disclosure of the proceedings to third parties without the permission of the court, was upheld. The mother also lost her application to have this judgment published in a non-anonymised form.

Neutral Citation Number: [2014] EWHC 650 (Fam)

Case No. FD12P04004

IN THE HIGH COURT OF JUSTICE

FAMILY DIVISION

Royal Courts of Justice

DateL 28th February 2014

Before:

MR. JUSTICE BODEY

(In Private)

_________

B E T W E E N :

Y (Applicant)

- and -

Z (Respondent)

_________

_________

The Mother appeared in person.

MR. Tod appeared on behalf of the Respondent (Father).

_________

J U D G M E N T

[In the interests of saving costs and with the express agreement of the parties, this Judgment has been prepared from the draft version used by the Judge on 28th February 2014. It is to be regarded as the definitive transcript and no other transcript need be bespoken. The Judgment may be reported in this anonymised form (only)].

A. INTRODUCTION

1. This is an appeal by a mother, whom I shall simply call 'the mother' against an order made in Schedule 1 proceedings by Senior DJ Waller on the 26th March 2013. By that order the parties are "...forbidden to disclose to any third party without the permission of the court any information or documents disclosed in or used for the purposes of these proceedings". I shall refer to this as "the injunction". The underlying proceedings concern financial support for the parties' son 'John', who was born in 2008 and is almost 6. As the reference to Schedule 1 shows, the parties were never married. What the mother wishes to do is to be able to disclose to the Police and/or to the Crown Prosecution Service and the Financial Conduct Authority [FCA] the fact that the father lied in statements and on oath in these proceedings. The point about disclosure to the FCA is that the father works in the financial services sector. His lies consist (i) of his initially not disclosing within the proceedings the fact that he had sold an enterprise owned by him through a company of his in a foreign country which I shall call 'Anonland' and (ii) of his subsequently going out of his way to deny that he had been aware of any such sale, or had received any proceeds. In fact, it eventually emerged that he had received £111,000.

2. At the hearing on 26th March 2013, in addition to the injunction, DJ Waller made several financial orders under 'Schedule 1'. The mother appealed certain of those orders, particularly his refusal to make a lump sum order to constitute a school fee fund to enable John to be educated within the private sector and for him to end up at one of the country's most prestigious public schools. The financial details of the order are immaterial for the purposes of this Judgment. The mother's appeal came before me and on 20th December 2013 I gave judgment, to which reference should be made. In short, I dismissed her appeal. The time estimate for the hearing before me did not give sufficient time for the mother's appeal against the injunction to be dealt with: so it was put off and I have now heard it as a discrete issue. The mother has argued her case in person, augmenting her written submissions with great skill and determination. The father has been represented by Mr Tod, who likewise placed before me written submissions augmented orally. Many points were covered in the arguments and many authorities referred to. I shall not be able to do justice to all of them, but have them well in mind and shall highlight those which strike me as the most important.

3. Under the rules, I am to allow the appeal if the decision of DJ Waller to impose the injunction 'was wrong' (FPR 2010 R30.12(3)(a): Re B [2013] UKSC 33).

4. It had been the mother's case in paragraph 5 of her Skeleton Argument dated 6th February 2014 that she was not seeking a public non-anonymised Judgment at this hearing. She there said and underlined: "The mother was not and does not seek unrestricted publication of the Judgment without anonymity". During the course of her presentation however, it became apparent that she was now saying that she did want a public Judgment without anonymisation. I explained the possible consequences of this in terms of publicity, which she might not necessarily find agreeable. I asked her to think about it carefully over lunch. Having done so, she confirmed her application that my Judgment should be given in open court and not anonymised, save as to changing the child's real name to the fictional name of 'John'.

B. SENIOR DISTRICT JUDGE WALLER'S JUDGMENT (26TH MARCH 2013)

5. Following many paragraphs of quite complicated fact finding regarding the father's finances, and having set out his conclusions thereon, the District Judge turned to the issue which had arisen during the hearing as to whether or not the mother should be permitted to report to outside agencies the father's (by now admitted) lies. In his final submissions, Mr Tod had asked for an injunction to restrain this. At paragraphs 228 and 229 of her subsequent closing submissions running to 240 paragraphs over 57 pages, the mother (who was acting in person) had described such an injunction as a '...disproportionate interference with my rights'. She said that it would be '...wholly unjust to grant the father an injunction, since he should not benefit from criminality and should be fully accountable for his actions'. She referred to his position as the Chief Executive Officer and Executive Chairman of a company funded by investors' money, the company being registered with the then Financial Services Agency '...which presumes he is a person of trust and integrity'. She said that '...given his ongoing deception to the Court and his lack of respect for law, it would be just and fair for him to face his responsibilities. This is certainly in the public interest'.

6. There has been discussion at this hearing as to whether the mother had satisfied R29.5 of the Family Procedure Rules 2010 about giving notice of ECHR points, particularly under Article 10 (freedom of expression). Certainly she did not specify any Articles by number. However, she did speak of 'a disproportionate interference with her rights', which I consider (since she was acting in person) sufficiently flagged up the sort of ECHR points which she has pursued in more detail before me at this hearing.

7. I need to record the District Judge's decision on this injunction issue (at paragraphs 129 to 132 of his Judgment) at length:

"In relation to disclosure of information generally, I think it is highly desirable in John's interests and the interests of the parties, that neither party seeks to rely on or use information provided in these proceedings except to the extent that it is necessary to do so to seek legal advice. The mother seeks particularly permission to disclose the papers, or at least the Judgment, to the Police... for the purpose of any further investigation in relation to perjury. ...In relation to that, the Court has to balance the interests of the parties, together with the public interest in the detection of crime. I am particularly concerned that these proceedings involve a young child, who may be affected by any proceedings which may be taken against either of his parents or their involvement in continued litigation together. ...The conclusion that I have reached is that it is manifestly not in the interest of the parties or of John for documents to be disclosed to the Police in circumstances where there is no investigation which is being undertaken to which these documents would be relevant. I am not suggesting that any such investigation should be undertaken. It seems to me that the issues arising from the non-disclosure in 2010 have been dealt with within these proceedings. Nothing is to be gained for the parties, or indeed for the public, in disclosure to the Police which would precipitate an investigation by them".

The District Judge then went on to observe that in contrast the Child Support Agency does have an interest in the conclusions reached by the court about income matters. He therefore permitted the paragraphs of his judgment dealing with the father's income (only) to be disclosed to that agency.

C. BACKGROUND.

8. A summary of the background appears at part B of my Judgment of 20th December 2013. Essentially, the parties had a relatively brief relationship which broke down in 2007, by which time the mother was pregnant with John. The mother is now 40 and the father 42. Both are highly educated and successful professionals. The mother used to work in the financial sector and the father still does. She is now studying for the Bar. Since their relationship broke down, the father has married and has two young children. He currently pays £12,000 p.a., for John as computed in paragraph 11 of my Judgment of 20th December 2013.

9. The mother's claim under Schedule 1 came first before DJ Basset-Cross on 25th March 2010. He took a poor view of both parties. He highlighted their profoundly different expectations from their relationship, the mother regarding it as an intense relationship lasting a number of months, the father painting a picture of 'not quite a one-night-stand, but very close to it'. He (the father) had wanted her to terminate the pregnancy and, when she went to the Child Support Agency, he denied paternity and sought DNA testing. For obvious reasons, this was very upsetting for the mother. The DJ listed, without making findings, a number of actions by her as summarised by the father's then-Counsel, including: her attending at the father's work place with John; lingering outside the father's home; sending unpleasant text messages to the father, his mother and girlfriend; and contacting his friends and acquaintances. He went on to say: "...Suffice it to say that the father was forced to obtain [an ex parte] non molestation injunction against the mother on 7th September 2009 to protect not only himself but also his girlfriend and her children". On the return date, the mother had given undertakings not to molest the father and he had agreed to have contact with John, although (as recorded by DJ Basset-Cross) he only took up one such visit. The District Judge continued:

"...there is no doubt of the view and feelings that the mother has generally with regard to the way she has been treated. I fear that the view she has formed by reason of her experiences has coloured her approach generally to this matter. ...Her case and the way she has pursued it, rather like a dog with a bone, is unattractive and some of her behaviour cannot in any way be condoned. But what is a mother to do when faced with the intransigence of a father who not only says she must terminate the pregnancy but then denies paternity? Not only has his approach to the impending birth of his son and subsequently in these proceedings been reprehensible, but his 'Discovery' has similarly been so late with production of documentation, and in some respects a failure to produce documentation. That in my judgement is an attitude of trying to get away with as little as possible and I think that it is totally and utterly wrong".

The orders made by DJ Basset-Cross on that occasion (25th March 2010) were in summary that the father should (i) settle £250,000 on John for a home to be held on the usual trusts and (ii) pay the mother a lump sum for John's benefit of £85,000. At that hearing, the father failed to disclose that (through a company of his) he had sold the enterprise in Anonland mentioned above.

10. Notwithstanding that non-disclosure by him, the father had the effrontery to appeal that decision. His appeal came before the late Mrs Justice Baron on the 30th November 2010. She too was critical of both parties as to the way in which they had managed their finances and described the mother as having behaved 'like a woman scorned'. Being unaware of the then undisclosed proceeds of sale (£111,000) of the father's Anonland enterprise, she reduced the lump sum awarded by DJ Basset-Cross by £45,000 from £85,000 to £40,000, with no order as to costs.

11. The mother applied to the Court of Appeal for permission to appeal Mrs Justice Baron's order, which was refused on 21st December 2010. She then applied for an increase in the father's contribution towards John's nursery fees, which was refused on 24th March 2011, with costs against her. She appealed that refusal, but withdrew her appeal before Mr Justice Singer on 4th July 2011 and was again ordered to pay the father's costs. A month later, in August 2011, the mother started correspondence seeking provision for John's school fees, which the father did not agree. On 16th January 2012, she issued her Form A1 for a school fees order and other financial orders. That is the application which gave rise to the hearing before DJ Waller ending in March 2013 and, thereafter, to this appeal to me. In July 2012, the mother applied against the father for an A v A legal fees order, which application was dismissed.

12. By this time, the mother had put herself in touch with an investigative journalist in Anonland and through him had ascertained that the father's enterprise there had in fact been sold in 2009, a year before the hearing before DJ Basset-Cross in March 2010. When confronted with this, the father's response was to say in a statement in July 2012 that he had known nothing about the sale, nor had received any part of the proceeds. He said that he had in no way sought to mislead the mother or the court. This is now known to have been false. He later repeated his case in a statement in November 2012, saying that he had known nothing about the sale of the Anonland enterprise until the mother's revelation of it in July 2012. Not only did the father make these false statements, but his accountant in Anonland made a statement accepting that there had been a sale in 2009 but adding that to the best of his knowledge '...the father never received any director's remuneration or any financial gain from the company'.

13. In August 2012, the investigative journalist in Anonland published on the internet an article about the father's false case, as had been presented to DJ Basset-Cross, that the Anonland enterprise was effectively unrealisable. The article quotes verbatim parts of the transcripts of the hearing in private before DJ Basset-Cross. The Mother accepts that she gave the journalist these transcripts and other documents relating to the proceedings, saying that she thought that this was in order because it amounted to gathering evidence. She told me it was regrettable that the article was published, but that this had not been within her control.

14. On 18th October 2012, at an inter partes hearing in separate proceedings brought against the mother by the father's wife, a DJ made an order against the mother in respect of what was found to be her harassment of the father's wife. Indemnity costs were ordered against the mother. She applied for leave to appeal against that order, which application was heard by a Circuit Judge and refused, again with costs against the mother. The father's wife's costs of those harassment proceedings were in the overall sum of about £25,000. They were not paid by the mother to the father's wife, with the result that, from the net proceeds of sale of his property in Z Road (referred to in paragraph 24 of my earlier Judgment) he paid them to his wife's solicitors.

15. The hearing before DJ Waller of the mother's application principally for a school fees fund started in December 2012. By then, the mother had obtained emails from Anonland demonstrating the father's enquiring from his managers there in 2009 about the net proceeds of sale and when he could access them. It was at this point only, and on the first day of the hearing, that he 'put his hands up' and admitted that his case up until then had been false. I was told by Mr Tod at this hearing without contradiction that it was the father himself who put in evidence (i) the fact that he had actually received some of the proceeds of sale in 2009 and (ii) that the sum concerned was £111,000. He, the father, apologised to the court, although it struck DJ Waller as 'somewhat half-hearted'. He, the District Judge, went on: "...I do not think he really appreciated in his evidence the gravity of what he had done. The mother on the other hand considers that the father deserves punishment for his failure to make disclosure and for his untruth in the earlier proceedings".

16. That hearing took up all or part of 6 days and involved 10 lever arch files. At paragraph 41 of his Judgment DJ Waller said of the mother:

"...she is extremely resentful at the father's lack of involvement in John's life.... She resents still, I think, the circumstances of the breakdown of their relationship and that the father has been able to form a new relationship and have another child with his wife. She considers that she and John have been let down thoroughly by the father and that he should pay in some way for that. She was described as being rather like 'a dog with a bone' in relation to her pursuit of the applications and certainly in relation to her pursuit of the [Anonland] affair, that seems to me still to be an apposite description.... Her financial claims and aspirations for John are in my judgement exaggerated, if not consciously then certainly subconsciously, because of the extent of her disbelief in relation to the father's circumstances and arising from her resentment of the role, or lack of role, which he has played".

He added that the father's untruth about the sum he received from Anonland was 'about as bad an untruth as one could imagine' and described him as being 'his own worst enemy in relation to the presentation of his case'.

17. One order made by DJ Waller at that hearing was that the father was to pay a further lump sum for John's benefit of £80,000, which included reparation for the mother for the financial cost to her of the father's lies. It was calculated as follows. The District Judge first allowed £15,000 for furniture and equipment and £5,000 towards a car which the mother had already purchased (sub-total £20,000). To repair the financial damage from the father's lies, he restored the £45,000 which Mrs Justice Baron had deducted from DJ Basset-Cross's award, added interest of £4,000, and added further the mother's costs of the appeal to Mrs Justice Baron, put at £11,000 (sub-total £60,000). These two sub-totals make up the £80,000. I have already mentioned at part A that the mother appealed, particularly about the dismissal of her application for an education fund and that I dismissed her appeal. Although the father's costs of the appeal to me in December 2013 were around £37,000, I directed that the mother pay only £7,500 towards them, given her modest capital of only around £20,000. This leaves the father on the face of it out-of-pocket by some £29,500 subject to what might have happened on detailed assessment of his costs. The mother was served with the sealed order on 23rd January 2014, but she had not paid those costs by the time of the hearing before me on 17th February 2014. She told me that this was because she intends to apply to the Court of Appeal for permission to appeal my dismissal of her appeals from the financial aspects of DJ Waller's order (it will be a second appeal) and therefore had not wanted to pay. I suggested, and the parties agreed, that she should pay the £7,500 into a joint account in the names of herself and the father's solicitors to await the outcome of her permission application to the Court of Appeal.

D. ARGUMENTS FOR AND AGAINST THE INJUNCTION.

Against the injunction and in favour of allowing the appeal

18. In no particular order, the mother's arguments against her being restrained by an injunction can be summarised as follows:

(a). that there is a public interest in the prosecution of crime, whether perjury or perverting the course of justice;

(b). that there is a public interest in the FCA being made aware of the father's capacity to lie in his own interests, since he is in a position of responsibility holding investor's funds and it is only right that the FCA should investigate his suitability for continued regulation;

(c). that the disclosure of perjury and/or of perverting the course of justice to interested outside agencies such as (here) the Police and the FCA, would deter would-be liars from lying and would improve the administration of justice by helping to promote public confidence in the courts;

(d). that being able to report the father's serious, selfish and demeaning lies would help assuage her feelings that she and John were just some kind of financial nuisance, unworthy of his having to tell the truth;

(e). that by his lies, the father has lost any right to claim the confidentiality of the process;

(f). that the injunction breaches or fails adequately to respect her rights under the ECHR, namely her right under Article 6 to a public Judgment (meaning non-anonymised) and, under Article 10, to 'receive and impart information';

(g). that, in many if not most crimes, children are affected by the parents' conduct, but those children do not shield people from the consequences of criminality; and

(h). that there would be no adverse effect on John if the father had to face prosecution and/or the loss of his FCA regulation (i) because the father has no contact with John and (ii) because the £12,000 pa he pays for John (calculated at paragraph 11 of my previous Judgment) is 'insignificant and does not even cover the food'.

In favour of the injunction and against allowing the appeal

19. In no particular order, the father's arguments justifying the injunction restraining the mother from disclosing information out of the proceedings to outside agencies are as follows:

(a). that the confidentiality of the process in financial proceeding like these is necessary to encourage frankness and to make it less likely that parties will try to cover up criminality or other reprehensible conduct;

(b). that incriminating evidence was given by him under compulsion, as he was under a duty of full and frank disclosure;

(c). that, if the mother were able to disclose his lies to the Police and the FCA, then there is a grave risk that it would spell his financial ruin, since he has no other experience than in the financial sector;

(d). that such an outcome would run the risk of nullifying the whole point of the mother's Schedule 1 application and would be to the considerable detriment of John through the potential loss of the father's ongoing financial support;

(e). that the father 'put his hands up' (albeit only when faced with a more-or-less unanswerable case) apologised and gave further evidence about his actual receipt of the sum of £111,000;

(f). that, in financial terms, the court has remedied the loss to the mother occasioned by his lies (see paragraph 17 in part C above) and that to permit her to disclose the information concerned would be to support or condone her ongoing vendetta against him and her determination to use the legal process to hurt him as much as possible;

(g). that this situation is not like the 'Inland Revenue cases' where a party has evaded tax and where it is only by disclosure to the Revenue that the loss of tax can be rectified;

(h). that the Family courts deal routinely with cases of high emotion, bitterness and recrimination which is particular to the relationship between the parties, and which leads people to do discreditable things like lying, which they would not do in other spheres of their life;

(i). that the mother's obsessive work as a litigant in person on preparation for these hearings ((i) over 1000 hours for the hearing before DJ Waller and (ii) 97 hours, nearly 7 hours a day, in the period 3 February 2014 to 17 February 2014) is evidence of her single-minded determination to bring the father down;

(j). that her litigation conduct has already cost the father a great deal of money in costs, including the costs of £25,000 of the harassment proceeding (above) and the shortfall of £30,000 by virtue of my costs order in December 2013 (above);

(k). that although some of the confidential material is on the internet, and thus in the public domain, there has been no impact on the father and no indication of any possible prosecution nor any interest by any outside agency; and

(l). that decisions like this require a careful balancing of conflicting interests, an exercise duly carried out by an experienced District Judge who saw and heard the case at length and whose discretionary decision cannot be said to have been wrong.

E. DISCUSSION

20. Notwithstanding the rule changes in April 2009 which, with exceptions, opened up family proceedings to accredited members of the press, the process remains generally confidential where children are concerned, or where the proceedings are financial in nature (Lykiardopulo 2011 1 FLR 1427 (CA) at paragraph 79). Observation of the process by the press does not normally lead to publication of the identities of the parties. More and more family judgments are now coming into the public domain, but usually anonymised. In financial cases, none of these changes have affected the practice whereby the parties are bound by duties of confidentiality arising from the compulsory nature of the requirement to give full and frank information to the court to enable it to perform its functions (Clibbery-v-Allan [2002] 1 FLR 565: Regina v K 2010 1 FLR 807).

21. That said, the general rule of confidentiality is relaxed by the FPR 2010 in certain carefully defined circumstances. I drew the parties attention to R14.14, as no-one had referred to it. It provides that: "For the purposes of the law relating to contempt of court, information (whether or not it is recorded in any form) relating to proceedings held in private may be communicated (a) where the court gives permission; (b) unless the court directs otherwise, in accordance with Practice Direction 14E ...". There follow other authorised communications, such as to legal representatives and to CAFCASS, which are not relevant here. Practice Direction 14E permits a party to communicate a judgment to a Police officer for the purpose of a criminal investigation. That creates a starting point of the mother's being permitted to disclose the Judgment of DJ Waller to the Police. That judgment is not anonymised and it clearly records the father's lies by which, on the face of it, he perverted the course of justice. Rule 14.14 would not however permit the mother to disclose it to the FCA, for which she would need the permission of the Court. If the Police had the judgment, they could apply to the court for disclosure of the statements and transcripts in which the father made the lies and later admitted them. To restrain the mother's taking advantage of Practice Direction 14E to go to the police, it was necessary for the father to obtain from DJ Waller an order under the 'unless the court directs otherwise' provision within rule 14.14(b). So Mr Tod was right, from the father's point of view, to apply for one.

22. I have been referred to many cases in which the court has grappled with the tension between the need for confidentiality in proceedings such as these and the public interest in criminal or similar activities uncovered within the process being disclosed to the appropriate authorities. The main such cases are S v S (Inland Revenue Tax Evasion) 1997 2 FLR 774 (Wilson J, as he then was); A v A; B v B (2000) 1 FLR 701 (Charles J); Clibbery v Allan (above) (CA); Norfolk CC v Webster 2006 EWHC 2733 (Fam) (Munby J, as he then was); Regina v K (above); Lykiardopulo v Lykiardopulo (above) and HMRC v Charman 2012 2FLR1119 (Coleridge J).

23. Perhaps the most comprehensive reflections on the various competing considerations, although completely obiter, are those of Charles J in A v A; B v B. That case was specifically about disclosure to the Inland Revenue of tax evasion, as to which the public interest considerations are different from where the wrongdoing and 'loss' can be reasonably enough remedied within the family proceedings themselves. At 737E Charles J noted that:

"...the court does not regularly send papers to the prosecuting authorities when a litigant admits that he has lied or is found to have lied to the court. ...It seems to me that, with a view to promoting the public interest in a civil court having all relevant material before it, a general practice can be adopted pursuant to which the court does not report the matter to the prosecuting authorities, particularly if the person involved makes full and frank disclosure and apology. There will naturally be exceptions having regard to the nature and circumstances of the case".

As Charles J pointed out however that pragmatic approach, which probably accords with the general experience of most who practise in this area, is much less readily applicable where the exposed criminality is 'external' to the case, such as tax evasion or defalcation of a third party's money. In such circumstances as those, he said at paragraph 739E that he generally favoured disclosure to the appropriate authorities. There is thus a discernable and reasonably logical distinction between (i) those non-disclosures and lies which by their nature can be reasonably well remedied within the family proceedings, which may include by restorative financial orders and/or costs orders, or even by committal or a fine for contempt of court (subject to procedural formalities and to proof to the criminal standard) and (ii) those which by their nature cannot be. In the latter situation, disclosure to outside agencies may generally be seen as more likely in practice than in the former, although no sanctions can ever be ruled out in either case.

24. As regards Article 6 of the ECHR, the requirement that Judgment shall be announced in public, is qualified. The press and public may be excluded from all or any part of the hearing 'where the interests of juveniles or the protection of the private life of the parties so require'. It is established both that a hearing in private in proceedings such as these does not offend Article 6 (B v United Kingdom; P v United Kingdom 2001 2 FLR 261) and that the anonymisation of the Judgment following such a hearing is similarly permissible: paragraph 31 of Lykiardopulo v Lykiardopulo. However, relying on that same case, the mother submits that this right to confidentiality is forfeit where a party lies and gives false information. In Lykiardopulo itself, which does not seem to have been referred to DJ Waller, the husband and family members had conspired to manufacture documentation which he used in the financial proceedings so as to reduce his financial exposure to the wife. The trial Judge, Mrs Justice Baron, described it as 'an unrepentant fraud' and ordered an anonymised Judgment. She did so primarily because the family was one of the most prestigious Greek ship-owning families and she was satisfied that public exposure of the lies would be extremely damaging to the family business. The Court of Appeal unanimously disagreed with her, finding in paragraph 65 that the family's litigation conduct would have 'no impact on their reputation for fair dealing in business'. Thorpe LJ observed that the anonymisation of judgments offers the public an opportunity to scrutinise the operation of the family justice system, whilst protecting the children and families directly involved [paragraph 43]. Stanley Burnton LJ said at paragraph 79 that:

"The general practice of the Family Division is for judgments in ancillary relief cases not to be published, or if published to be anonymised. That is done out of respect for the private life of the litigants and in order to promote full and frank disclosure and because the information in question has been provided under compulsion. However, different considerations apply where the information and documents provided by a litigant are false. That litigant has no entitlement to confidentiality in respect of that information or those documents. They do not evidence his private life. In general there is no good reason why his conduct should not be public. In such a case, the court may order publication of a judgment without anonymisation, not as a sanction or punishment, but because there is no right to confidentiality in relation to that conduct. In the present case, in my judgement, there is no good reason for anonymity".

Tomlinson LJ added that the risk of damage to the shipping business was "fanciful" and agreed that dishonesty is not ordinarily entitled to confidentiality. In the result, the Court of Appeal there directed a non-anonymised public judgment with redaction as appropriate.

25. Those judgments in the Court of Appeal may be seen to presage the more robust approach to publicity (without anonymisation, if there is good reason for the parties identities to be known) repeatedly encouraged by Sir James Munby P, particularly in Re J (a child contra mundum injunction) 2013 EWHC 2694 (Fam) and in his Guidance on Transparency in the Family Courts at 2014 Fam. Law 222. I do not, however, read the Judgments in Lykiardopulo in the one-dimensional way argued for by the mother, namely that lying equals loss of confidentiality. There is still the balance to be struck which the authorities show to be an essential part of making the necessary decision. Stanley Burnton LJ's reference to 'no entitlement to confidentiality' in my view clearly means no absolute entitlement, since he went on in the next two sentences to talk about the fact that in general there may be a public non-anonymised judgment and that the court may order such a judgment, although (significantly) 'not as a punishment'. There is a difference between Lykiardopulo and this case, in the fact that there the CA rejected the husband's argument of damage to his business for lack of evidence; whereas here, the District Judge could see for himself that the father would clearly be at risk of a loss of his income, whether from a prosecution or from forfeiting his regulation by the FCA.

26. As regards the mother's case that the injunction fails to give effect to her Article 10 right of freedom of expression, that right is qualified, not absolute. Sub-paragraph two of the Article permits such restrictions as are prescribed by law and are necessary in a democratic society '...for the protection of the reputation or rights of others ...', including here John's right to respect for his private life. Given that the mother's right to impart information from these proceedings is qualified in that way and given the other rights engaged, particularly in that the father was under a duty to give financial information (which the mother received under the implied undertaking of confidentiality) I do not see that the injunction fails to respect her Article 10 right; or otherwise stated, the interference is necessary and proportionate.

27. As for the fact that the information about the father's lies is already in the public domain, I am unimpressed by that argument. True it is that the details are 'out there' and cannot be 'got back'; but this is only by virtue of the mother's self serving breaches of her duty of confidence placing her prima facie in contempt of court. Her response that the father had himself broken the confidence of these proceedings by introducing information from these proceedings into the above harassment proceedings brought against her by his wife, is unpersuasive. The context of that case was in a different league from going to an investigative journalist with detailed transcripts of evidence heard in private. The mother must appreciate this and she accepted before me that it was not necessary, in order to find out what the journalist unearthed, to disclose to him the father's evidence before DJ Basset-Cross.

28. As has been said repeatedly, these cases require a balancing exercise of many competing considerations and interests. Here the interplay is complex and involved a number of rights and interests both private and public, which needed to be evaluated. Whilst, the interests of John are not paramount, they are an important consideration, as Lord Steyn noted in Re S (a child: identification: restrictions on publication) 2005 1AC 593, when stating that it is "...necessary to measure the nature of the impact...on the child". It was in the same case that he spoke of the need for "...an intense focus on the comparative importance of the specific rights being claimed in the individual case", and referred to the "...ultimate balancing test" when the proportionality of an interference with any particular right falls to be taken into account.

F. CONCLUSION

29. The balancing exercise is different as between (i) the rights and interests of the parties between themselves and (ii) the public interest. As between the parties, it has to be said that the mother appears to be so preoccupied with her own sense of grievance (to which the father's attitude and conduct here contributed) as to be overlooking or not caring about the risk to her budget if she were to disclose the father's lies to the Police and the FCA. Her suggestion to me that the loss of £12,000 pa into her household would not matter, when she is on benefits and with a small amount of dwindling capital, does not bear examination. It demonstrates that her single-minded determination to have the father punished has overridden her willingness or ability to give due weight to John's best interests. In financial terms, DJ Waller accorded her reasonable reparation (£60,000, as per paragraph 17 above) for what she and John had lost through the father's non-disclosure. In addition, her litigation conduct (also summarised above) can be seen to have put him to considerable further expense in legal costs which he cannot recover. It is no surprise that DJ Waller took the view he did in seeking to protect John from the threat to his support from the father and in declining to condone the mother's disclosures to outside agencies in order to satisfy her own sense of grievance.

30. As regards the public interest in the prosecution of crime and the proper performance of its duties by the FCA, the position is more difficult. Although the mother prays in aid those public interest considerations, they are clearly not her underlying motivation. Nor is she the guardian of the public interest. Nor is it the role of the Family Court proactively to disclose information which might be of interest to outside agencies, such as the Police, the Revenue, regulatory bodies or employers. Given the number of skeletons which come out of cupboards in family proceedings, where would it end? As Charles J put it at 741 B in A v A; B v B:

"In my judgment, it is no part of the functions of the Courts to act as investigators, or otherwise, on behalf of prosecuting authorities, the Revenue, or other public bodies. I also accept the submission that the court is not a 'common informer'. The courts have a separate and discrete public function. In my judgement there is a strong public interest (within the strong public interest in the proper and efficient administration of justice) that the courts should limit themselves to carrying out their functions... and it is only when as a result of the performance of its functions a court is satisfied that an issue arises as to whether material should be disclosed in the overall public interest that it needs to consider, or should consider, that question".

31. Clearly there are family cases where the process uncovers and the court makes findings about things so serious that a disclosure does have to be made in the public interest: for example, where findings are made as to the perpetration of a child death; or where (say) a party who is a serving policeman is found to be corrupt; or where a party who works with children is proved to be a paedophile. Weighed up within the decision to disclose is always the question of proportionality, as to which every case is different and fact-specific. It was not established here, nor could it have been, that the father had for example been falsifying the accounts of his business, or committing defalcations with his client's money. What he was found to have done was to have failed to give full and frank disclosure and to have lied about his resources in the fact-specific situation of a relationship which had become bitter and acrimonious and in the context of which, most discreditably, he did not wish to have to pay to the mother for the benefit of his child any more than he could possibly avoid. This is in no way at all to excuse his conduct, which was inexcusable, greedy and unfair; but it is to put what he did in its context. Was it sufficiently connected to his business affairs and would it be proportionate to permit the intended disclosures, given the downsides in terms of the threat to John's financial support? DJ Waller effectively posed himself that question, and answered it as at part B above by saying that it would not be proportionate. He referred particularly to disclosure to the Police and did not mention the FCA by name; but he was well aware of the mother's wish to disclose to that authority too and it is common ground that the Police would almost certainly do so, if the information were given to them.

32. This was a difficult balance for the DJ to strike and I am entirely conscious of the arguments raised by the mother about setting an example that there will be sanctions for lying and also about upholding public confidence in the courts. However, I am not here exercising a fresh discretion of my own, but reviewing the decision below; and I am not in the end persuaded that the District Judge carried out the balancing exercise in a way which can be characterised as wrong. I consider this case came close to the line, particularly in respect of disclosure to the FCA; but that is not to say that it crossed it, as the District Judge decided it did not. No-one should however regard this case as a green light for failing to disclose relevant information and/or for lying to the Family courts. There is and always has been a probability that anyone who does so will be the subject of sanctions of one sort or another, and of differing types and severity, including in appropriate circumstances disclosure to relevant outside agencies.

33. I turn last to the mother's late application for this Judgment to be non-anonymised. Normally it would be necessary on this to factor in the Art 8 rights of the father and John to respect for their private lives. However, it is not necessary to undertake that exercise here. If this judgment were to contain the names of the parties, it would effectively be to give the mother everything she seeks, something which I think she realised during the course of the hearing, and would undermine the balanced decision taken by DJ Waller not to permit disclosure to the Police and/or the FCA. It is for that reason that I reject the application for a non-anonymised judgment and that this judgment is delivered with anonymisation.

Judgment, published: 10/03/2014

Topics

See also

In these Schedule 1 proceedings, mother wanted to be able to disclose to the Police and/or to the Crown Prosecution Service and the Financial Conduct Authority [FCA] the fact that the father lied in statements and on oath in these proceedings.Case note, 29/04/2014, free

Items referring to this

Wife's application that judgments in these financial remedy proceedings, where the husband had been found to have defrauded her parents, should be published un-anonymised. The application was granted.Judgment, 16/03/2018, free

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